In a recent Ontario case, Quinlan v. Caron, a daughter sought to set aside the will of her mother. An earlier will left the estate to the daughter and a son. A later will left the estate to the son alone. The daughter sought to set aside the will on grounds of undue influence. The case provides a good analysis of the legal requirements for proving undue influence. The judge found there to be evidence of a real estrangement between the mother and daughter and therefore valid reasons why she might have left the daughter out of the final will, leading to a finding that there was no undue influence.

The kicker for the judge though appeared to be evidence that when the father passed away, the daughter purchased a cemetery plot for him and one for herself (but apparently not the mother) and a headstone that said “Father dearly loved by [daughther] and grandchildren” – no mention of the mother or son. You might say from at least that moment forward, the daughter’s poor relationship with her mother was carved in stone (I hear you groaning by the way).

On April 14, 2016 Parliament introduced Bill C-14 to amend the Criminal Code and related statutes in response to the Supreme Court of Canada’s Carter ruling on medical assistance in dying.

The bill removes criminal liability for assisting a person to end her or his life if carried out in compliance with the new s. 241.1.

The bill first defines “medical assistance in dying” as the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death, or the prescription or provision of such substance to be self-administered.

In order to be eligible to receive medical assistance in dying, a person must:

be 18 years of age and capable of making decisions with respect to their health;

have a grievous and irremediable medical condition;

have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

give informed consent to receive medical assistance in dying.

Clearly the most debated portion of the bill will be defining what constitutes a “grievous and irremediable medical condition”. The government has defined it in the bill as requiring all of the following:

a serious and incurable illness, disease or disability;

an advanced state of irreversible decline in capability;

enduring physical or psychological suffering that is intolerable to the person and cannot be relieved under conditions that they consider acceptable; and

natural death being reasonably foreseeable, taking into account all medical circumstances, without a prognosis necessarily having been made as to the specific length of time that a person has remaining.

The requirement of “an advanced state of irreversible decline in capability” and “natural death being reasonably foreseeable” have been viewed as overly restrictive by some, but are largely approved of by the medical community.

Safeguards are included in the bill, requiring that before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, they must:

be of the opinion that the person meets all of the eligibility criteria above and obtain a written opinion to that effect from another, independent medical practitioner or nurse practitioner;

ensure that the person’s request for medical assistance in dying was made in writing, signed and witnessed after the person was informed that their natural death has become reasonably foreseeable;

ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;

ensure that there are at least 15 clear days between the day on which the request is signed and the day on which the medical assistance in dying is administered, unless a shorter period is deemed appropriate in the circumstances;

immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.

The bill extends protection to pharmacists who prescribe substances and to others who assist the medical practitioner or nurse practitioner is administering assistance in dying. A criminal offence is established for failing to follow the safeguards, with potential jail sentences of not more than 5 years.

No manner of providing medical assistance in dying is set out. The bill only requires that assistance be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules and standards. Indeed, as health care is within provincial rather than federal jurisdiction, it will be up to the provinces to implement and oversee the practice of delivering medical assistance in dying.

Much debated before the bill was introduced were issues such as the eligibility of minors, mental illness and advance consent. Minors are clearly not eligible and will be the subject of further study. As for mental illness, it is not specifically deemed ineligible and indeed the definition of a grievous and irremediable medical condition illness references psychological suffering. However, the issue of mental illness will undoubtedly be problematic as mental illness may affect the ability of a person to give informed consent. Connected to this issue is the matter of advance consent. What happens if a person has a serious and incurable illness, disease or disability but is not yet in an advanced state of irreversible decline in capability? If they are suffering from a progressive cognitive disease, by the time their disease and suffering has advanced, they may no longer be capable of giving informed consent to treatment. This bill would not allow that person to give consent to medical assistance in dying before their cognitive abilities decline.

The government has taken a cautious approach with this bill. Given what is really a short period of time to deal with such a large social issue, this was not unexpected. Once this bills passes, whether intact or with amendments, the debate will continue and there will undoubtedly be many calls for amendment, both for more restrictive and for more liberal measures.

Justice Paul Perrell of the Ontario Superior Court of Justice today granted the application of an 81-year-old man, permitting him to proceed with a physician-assisted death. Known as A. B., the applicant has aggressive, advanced stage lymphoma.

The application is the first granted in Ontario since the Supreme Court of Canada’s decision in Carter. A. B. met the Superior Court of Justice’s test for an exemption under Carter. The test is a temporary measure put in place while the federal government deals with a legislative framework for physician-assisted death.

People who have a positive attitude towards their own ageing live, on average, 7.6 years longer than people with more negative views. They eat a healthier diet, exercise more and recover more quickly from illnesses. – Yale University

As discussed in an earlier post, in February 2015 the Supreme Court of Canada declared that portions of the Criminal Code that make it an offence to aid or abet a person to commit suicide are of no force or effect to the extent that they prohibit physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. The declaration of invalidity was suspended for 12 months, until February 6, 2016, to allow time for the government to determine what, if any, legislative approach was appropriate to deal with the Court’s decision – in other words, what guidelines should be put in place to allow for physician-assisted death.

In January of this year, the Federal government requested a six-month extension of the suspension. With the exception of Quebec, the Court granted a four-month extension but directed that during that time period, applications may be brought to provincial superior courts for exemptions to permit individual cases of physician-assisted death to proceed so as not to “unfairly prolong the suffering of those who meet the clear criteria we set out in Carter“.

On February 2, the Ontario Superior Court of Justice issued a practice advisory dealing with the procedure and evidentiary requirements for exemption applications in Ontario. Of note is the direction concerning evidence to be included, stating that the application “should” (read – “had better”) include affidavit evidence from (1) the applicant; (2) the attending physician; (3) a consulting psychiatrist; and (4) the physician proposed to assist death. The evidence to be provided must lead the Court to conclude that the applicant:

has a grievous irremediable medical condition (illness, disease, or disability) that causes suffering

as a result of his or her medical condition, the applicant is suffering enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the applicant

has the mental capacity to make a clear, free, and informed decision about a physician assisted death

will be physically incapable of ending his or her life without a physician assisted death

consents without coercion, undue influence, or ambivalence to a physician assisted death

makes the request for authorization for a physician assisted death freely and voluntarily

Given the relatively short extension (by which time guidelines should be in place) and the evidence necessary to obtain the exemption, I would not expect there to be more than a handful of exemption applications.

According to reports, aside from what appear to be a couple of generous bequests (what is Possum Inc.?), David Bowie, or should I say David Robert Jones, has left most of his real estate and 50% of the residue of his estate to his wife Iman. 25% of the residue will go to each of his two children (one real estate property goes to David and Iman’s daughter). I suggest litigation should be unlikely with this division but …

Life insurance can be an effective way to leave a legacy. It allows you to benefit a loved one and, unless the insured’s estate is the beneficiary, avoids the requirement that funds pass through probate. However, life insurance proceeds are not entirely free and clear of estate obligations in Ontario – so beware before spending that money (and do not disregard notice of court proceedings) – as one man’s daughter learned in the recent case of Bormans v. Bormans Estate.

Sections 72(1) (f) and (f.1) of the Ontario Succession Law Reform Act deem life insurance proceeds to be an estate asset for the purpose of determining the rights of a dependant to support from the estate. Insurance proceeds therefore may be available to pay support if the other assets of the estate are insufficient to do so. In Bormans, Mr. and Mrs. Bormans divorced after 38 years of marriage. Mr. Bormans was to pay support to Mrs. Bormans and warranted to her that she was named as beneficiary of his company life insurance policy. When he died, without assets, Mr. Bormans was in arrears of his support obligations. To Mrs. Bormans’ surprise, the company policy had been cancelled but Mr. Bormans had purchased another life insurance policy, naming his daughter as beneficiary. The proceeds of that policy had been paid to the daughter. The daughter, despite notice of a court application by Mrs. Bormans for dependant’s relief, proceeded to dispose of most of the insurance proceeds.

The Court found that Mrs. Bormans was a dependant of Mr. Bormans’ estate. As a result, the Judge determined that most of the policy proceeds paid to the daughter should have been available to satisfy the estate’s support obligations to Mrs. Bormans. The Court placed emphasis on the fact that Mr. Bormans had warranted that Mrs. Bormans was the beneficiary of a life insurance policy. The daughter was ordered to pay to Mrs. Bormans most of the insurance proceeds, with the exception of some amounts spent prior to her receiving notice of the court application. As the daughter had already used a large part of these proceeds, she became personally liable to repay these amounts.